Before CLARK and SMITH, Circuit Judges, and DAWSON, District Judge.
This is a petition for a writ of mandamus directing Chief Judge Bruchhausen to vacate, reverse, or modify an order of preclusion he has made against the introduction of certain testimony or reliance on certain theories of law in the trial of an action brought by the present petitioner and now pending in the district court. The action is one for negligence and breach of warranty against Liggett & Myers Tobacco Company, wherein the plaintiff claims damages for a cancer of the larynx alleged to have occurred as a result of smoking cigarettes manufactured by the defendant. It was commenced in 1955 in the state court and was removed by the defendant to the federal court. It is said to be one of the oldest cases on the court's calendar.
After the case had been at issue and marked ready for trial in 1959 and 1960, the defendant moved for an order directing pre-trial proceedings under F.R. 16, and the court on February 5, 1960, per Byers, J., granted the motion. The court's order specifically directed proceedings according to F.R. 16, and ordered the parties to appear for a pre-trial conference before a trial-part judge on February 17, 1960, to consider the matters specified in that rule, reciting it in substantial substance. But the hearing was not held because Judge Bruchhausen, the trial-part judge, acting on defendant's motion, ordered "a complete pre-trial statement," in accordance with the defendant's notice, by a time stated, with time also set for an answer by defendant. The plaintiff's statement when received was adjudged insufficient on defendant's motion, and the court ordered the plaintiff to file a new statement supplying the deficiencies asserted by defendant. This procedure was repeated a second and then a third time, with the plaintiff filing a total of three pre-trial statements of at least considerable bulk and the court adjudging each insufficient on the defendant's objection, until eventually the court granted the defendant's motion for preclusion. On February 23, 1961, it entered the preclusion order in the terms requested by the defendant.
The order is sweeping in its mandate. It is based upon specific findings that plaintiff's three successive pre-trial statements "have failed to comply with notices and this Court's prior rulings" and that "plaintiff has been afforded more than ample opportunity to meet the prescribed requirements"; and it orders the defendant's motion to preclude "granted in all respects." It then specifically precludes the plaintiff from offering at trial (1) any evidence of lay witnesses except the plaintiff and his wife; (2) any expert testimony; (3) any exhibits except three named (of a medical nature dealing with plaintiff's alleged treatment some years ago); (4) any evidence of damages, with four exceptions (a hospital and two doctors' bills, plus "pain and suffering"); and (5) any evidence "on the issue of liability in either negligence or breach of warranty." It appears to be conceded, as well as clear, that these preclusions remove all basis for proof by the plaintiff of his claim and that the trial now ordered can have only one outcome, namely, judgment for the defendant.
This case has given us the utmost concern. We realize that to make pre-trial procedure effective appellate interference with trial court discretion must be kept to a minimum; and we are apprised of the devoted efforts of this court to meet a mounting burden of congestion with all weapons it can command, including notably those afforded by F.R. 16. Nevertheless, we do have an overriding responsibility to see that justice is done between litigants before the court. Gill v. Stolow, 2 Cir., 240 F.2d 669, 670; Syracuse Broadcasting Corp. v. Newhouse, 2 Cir., 271 F.2d 910; Independent Productions Corp. v. Loew's Inc., 2 Cir., 283 F.2d 730; Societe Internationale Pour Participations Industrielles et Commerciales, S. A. v. Rogers, 357 U.S. 197, 78 S. Ct. 1087, 2 L. Ed. 2d 1255. And it would seem a part of wise judicial economy, if not necessity, to meet that issue now without subjecting the parties and the court to the delay and burden which would be caused by the ultimate reversal clearly indicated. La Buy v. Howes Leather Co., 352 U.S. 249, 259-260, 77 S. Ct. 309, 1 L. Ed. 2d 290; 28 U.S.C. § 1651(a). Hence we are constrained to conclude that we must grant the petition for the several reasons we shall now indicate.
First is the anomalous and even selfdefeating character of the order itself. It does not in form deny the jury trial sought by the plaintiff, but it does so in substance. While it avoids the clear-cut issue sought by plaintiff in his alternative request for outright dismissal (as a basis for appeal) yet it leaves a trial necessarily abortive in nature. There must be better ways to vindicate pre-trial orders than by superfluous and hopeless trials which can be only burdensome to the litigants and the court.
Second is the drastic nature of the penalty inflicted upon a litigant for what at most is an error or dereliction of his lawyer. It is to be noted that, although the defendant in its answer raised the defense of failure to state a claim for relief, that issue has not yet been considered and appears not ripe for decision; the decision which in practical effect ends the case is explicitly placed upon the lawyer's failure to comply with the court's requirements as to pre-trial. Further, there has here been not so much outright default on counsel's part as a debatably inadequate compliance - an issue in itself of some legal difficulty, as we shall presently indicate. It would seem hardly likely under these circumstances that the lay plaintiff could know or comprehend the doom about to be visited upon him, not his counsel, in time to avert it if, indeed, that were in any way possible.
Finally there is the form and content of the pre-trial procedure adopted here. And here we are constrained to conclude - with reluctance because of the extensive planning below, but with conviction of the need if pre-trial is to retain utility - that the course here followed not only is unauthorized, but is at odds with the purpose and intent of F.R. 16. That rule calls for a conference of counsel with the court to prepare for, not to avert, trial, leading to an order which shall recite the "agreements made by the parties as to any of the matters considered." It is subordinate and conciliatory, rather than compulsive, in character. Nothing in the rule affords basis for clubbing the parties into admissions they do not willingly make; but it is a way of advancing the trial ultimately to be had by setting forth the points on which the parties are agreed after a conference directed by a trained judge.*fn1
This is shown vividly by the nature of the disclosures sought by the defendant and approved by the court. They were of two kinds: a demand for further particularity in the statement of the claim and a demand for the witnesses and exhibits to be offered by the plaintiff. So on the first point, defendant's original demand, which the judge incorporated in his order, was that the plaintiff state (1) "the facts of this case," identifying those admitted by the parties and those put in issue by the pleadings; (2) "plaintiff's legal theory or theories of recovery"; (3) what facts plaintiff intends to prove in support of each theory; and (4) the details of plaintiff's damage. On the second, the plaintiff was required (5) to list all proposed exhibits; (6) the names and addresses of all expert witnesses, together with their field of specialization and the substance of their testimony; (7) the names and addresses of all lay witnesses and the substance of their testimony; and (8) whether he intended to seek further relief or discovery, and if so, what. And the demand for the pleading of a legal theory became ever more insistent as the proceedings continued, so that at the end the defendant was seeking information as to detailed claims of law enumerated in several typewritten pages. Yet if there is any characteristic of the federal rules (and indeed of code pleading generally) which is well settled, it is that a plaintiff pleads facts and not law and that the law is to be applied by the court. See, e.g., Gins v. Mauser Plumbing Supply Co., 2 Cir., 148 F.2d 974, 976, and F.R. 54(c). In fact plaintiff did go beyond this to set forth in some detail his theories of negligence and of breach of implied and express warranty. What more was or could be expected of him remains unclear. In any event, the departure here made from the pleading ideals embodied in the Federal Rules of Civil Procedure in the preclusion order against certain legal claims, based on failure to plead specially, is obvious and marked.
The other branch of the preclusion order excluding lay and expert testimony and exhibits which the plaintiff's statement shows to be relevant to the issues appears to be an attempt to shorten what may well be a lengthy trial. The plaintiff, to give himself a wide range of choice, listed what does appear to be an excess of witnesses, particularly of medical witnesses, beyond his practical trial needs, drawing for names on those turned up in a similar trial recently had in the Western District of Pennsylvania. If at trial an excess of witnesses is presented, the trial judge may take steps to expedite the hearing; it may be doubtful if much can be done in advance of trial to that end. Obviously plaintiff cannot be deprived of his rights without trial even if the trial promises to be long and burdensome. At this stage where the evidence is indicated to be relevant, the only useful disclosure would appear to be as to the identity of the witnesses plaintiff plans to call. As a matter of fact the courts have been sharply divided on the question whether a party can be forced to disclose his prospective witnesses in advance of trial, with the majority view apparently in the negative.*fn3 We are not disposed, however, to rule that a court in a pre-trial conference may not inquire of counsel as to his then plans as to the calling of witnesses, including the hiring of experts. Such a direct inquiry is likely to elicit more specific information than will be found in detailed written statements. But in no event at this pre-trial stage should witnesses be excluded because of mere numbers, without reference to the relevancy of their testimony.
While therefore this preclusion order is too broad, we see no reason why the judge, in direct conference with the counsel, rather than by arm's length examination of written statements, cannot evolve a pre-trial order showing points of agreement which will materially shorten the trial. And he has and should exercise the power to see that trial counsel are present to assist him in this task. If they fail in their share of responsibility, there are adequate sanctions which may be applied to compel them. See M. W. Zack Metal Co. v. The S.S. Birmingham City, 2 Cir., 291 F.2d 451.
The benefits to courts and litigants from carefully conducted pre-trial proceedings are now well known and widely acclaimed. But these are not to be achieved automatically; they require the diligent efforts of both court and counsel working in earnest co-operation to a common purpose. For success the leadership, direction, and stimulus of the judge are vital. True, he needs unusual qualities of tact, persistence, and patience to instruct lawyers in trial ways unlike the state practice to which they are accustomed, to still the emotional animosities of counsel who have allowed themselves to become too closely identified with their clients' causes, and generally to lead the parties and their attorneys to the frank and unforced concessions which alone justify the procedure. If a judge is not prepared to give the time and effort thus required for successful pre-trial, it would seem that he should avail himself of the discretion still accorded him under F.R. 16 of not engaging in the attempt. But if he does undertake it and carry it through in the spirit of the rule, it is, as experience is now continually demonstrating, one of the most rewarding accomplishments to which a federal judge can aspire. He will deserve and receive public plaudits for his efficient dispatch of the public business; but even more, he will receive the grateful thanks of counsel and litigants for better justice more shortly and efficiently obtained. We suggest that with a new start and a fresh determination to co-operate, the parties and the court may well achieve wonders in this very case.
While we thus urge a return to the original purpose of the pre-trial conference, yet it may be desirable out of caution to note what we do not decide. Thus we do not hold that an order of preclusion may never be appropriate; indeed, it is one of the sanctions for discovery orders provided in F.R. 37(b) (2), though its use to preclude an entire case is unusual. Nor do we hold that a district judge may not request a pretrial memorandum or statement from a party to assist him in formulating a pre-trial order showing the admissions and concessions of the parties and the issues remaining to be tried. But a requirement of successive repleadings to force a plaintiff against his will to limit his case beyond the issues he has tendered in his complaint is contrary to the basic principles of the federal rules. It is too often overlooked that federal pleading is still issue pleading, presenting a definite issue for adjudication; the use of the term "notice pleading" - which was rejected by the rule-makers and never employed by them*fn4 - is prejudicial to a proper operation of the federal system, since it suggests the absence of all pleadings and the necessity of some substitute by way of pre-pre-trial. And then we run into the situation so usual where special pleading is emphasized that it remains uncertain what is demanded; here after four tries by defense ...